Why are parties to an action important?

  • Whatever judgement the court gives must be binding on the parties in court.

  • If the proper parties are not before the court, the matter will be struck out.

  • The time of the court and that of the client will be wasted and costs will be borne.

Capacity to sue and be sued

In any cause of action, after determining the nature of action, jurisdiction of court and proper advice on ADR mechanism, the next thought should be the likely parties to an action. Parties to an action is important because a court can only resolve a dispute if the right parties are before it. Once relevance of parties is not determined, it goes to the root of the matter. Again, any claim if successful must be against another party and such party must be the person who claims can be recovered from. There are usually two parties in a civil action, the party who is claiming and the party who is being claimed against.

A party cannot be both plaintiff and defendant in the same action at the same time. See UDE v. NWANGWU (1995) 9 SCNJ 41.

Who can sue and be sued
For the action to be competent, both parties must be legal persons (whether natural or juristic). If the competence of the plaintiff/claimant is challenged, the onus is on him to establish his competence as lack of competence on the part of the plaintiff/claimant will lead to the action being struck out. In SHITTA & ORS v. LIGALI & ORS the plaintiffs described themselves as ‘the executive community of the central mosque, Lagos and the court held that the committee had no capacity to sue. However in Adegbite & ors v Lawal & ors, the plaintiffs sued ‘for themselves and on behalf of the Muslim community of Ijebu-Ode central mosque and the court held that they were natural persons.

  • Thus, non-existent persons cannot sue or be sued. If the defendant is not a legal person, the matter will be struck out for it is incompetent. See AGBOMAGBE BANK v. GENERAL MANAGER, G.B. Ollivant. .However, by Order 13 r 5 Lagos (no provision in Abuja), where an action has been instituted against a wrong defendant or where the name of the defendant has been incorrectly stated, a judge may upon application, order a substitution or addition of any person as defendant or correction of any such name on such terms as may be just.

  • However, in the case of a misnomer, the position of the law is that upon an application, the writ and other court process will be amended to bear the correct name.

  • OKECHUKWU & SONS v. NDAH. By Order 10 r 2 Abuja and Order 13 r 2 Lagos, where an action was commenced in the name of a wrong person as plaintiff/claimant or where it is doubtful whether it was commenced in the name of the right plaintiff/claimant, a court or judge in chambers (for Abuja) or a Judge (for Lagos), may order the substitution or addition of any other person as plaintiff/claimant on such terms as may be just.. In Abuja, before making the order, the court or judge in chambers must be satisfied that it was as a result of a bona fide mistake and that the order is necessary for the determination of the real matter in dispute. See also SO SAFE TABLE WATER TECHNOLOGIES LTD V AYINOLUWA.

Effect of failure to include a person who ought to be made a party is that he will not be bound by the decision in that suit. See OKOMU OIL PALM v. ISERHIENHEN

Types of parties

There are different types of parties to a civil action

  • PROPER PARTIES: A proper party has no interest in the case, but he is joined because of the particular role he played which led to the cause of action. The judgement of the court will not affect him.. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480.

  • NECESSARY PARTIES: These are persons who are interested in subject matter and in whose absence, the proceeding cannot be fairly dealt with. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480. Thus, a necessary party is a party whose presence is necessary for the just, effectual and complete determination of all the issues in the action. See COL. HASSAN YAKUBU (RTD) v. GOVERNOR, KOGI STATE & ORS (1995) 9 SCNJ 122; Peenok Investment Ltd v. Hotel Presidential; UNION BEVERAGES LTD v. PEPSI COLA INTL LTD. When an agent acts on behalf of a disclosed principal, the PRINCIPAL is a necessary party. In all actions, necessary parties are used except where the law specifies a nominal party.

  • DESIRABLE PARTIES: A desirable party is one who is not originally a party to the action nor whose presence is necessary for the just, effectual and complete determination of the action, but nevertheless, needs to be a party so that he will be bound by the decision in the case since the decision may directly affect him. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 480; COL. HASSAN YAKUBU (RTD) v. GOVERNOR, KOGI STATE & ORS (1995) 9 SCNJ 122. Note that the AGENT of a disclosed principal is a desirable party. Peenok investment v Hotel Presidential.

  • NOMINAL PARTIES: these are parties who are not really involved in the set of facts constituting the cause of action, but are made parties to the suit by virtue of the office they hold or occupy. See PADAWA v. JATAU (2003) 5 NWLR (Pt. 813) 249. For example, in actions involving the federal government or the government of a state, the AG of the federation or of the state respectively is the nominal party, see section 20 Supreme Court Act; in actions involving the House of Assembly of a State, the nominal party is the Speaker of the House, see section 3 of SC (AOJ) Act Cap S16 LFN 2004; in an action for passing off, the CAC is a nominal party; in Magistrate Courts, the Commissioner of Police is a nominal party for the state.

However in a case where the principal parties sue or are sued instead of the nominal parties, it would only amount to an irregularity. See PLATEAU STATE v. AG FEDERATION (2006) 3 NWLR (Pt. 967) 346

Reconciling locus standi with constitution of parties to an action.

The concept of locus standi is that only a person who has interest in a subject matter is competent to bring an action. A busy body cannot institute an action. Locus standi is only relevant to a plaintiff thus a plaintiff – person claiming must have interest in the subject matter of the suit.

How parties are designated

  • Writs of summons – Plaintiff (but called Claimant in Lagos)/Defendant

  • Originating summons – Plaintiff (or Claimant)/Respondent

  • Petition – Petitioner/Respondent

  • Originating motions-Applicant/respondent

The same person can be both a plaintiff and defendant (in case of counter-claim) in the same matter; also an applicant and respondent. Parties are usually set out after the heading of the court, suit number.